United States v. Union Bridge Co.

• Decision Date: 09 February 1906
• Docket Number: 1.
• Citation: 143 F. 377
• Parties: UNITED STATES v. UNION BRIDGE CO.
• Court: U.S. District Court — Western District of Pennsylvania

143 F. 377

UNITED STATES v. UNION BRIDGE CO.

No. 1.

United States District Court, W.D. Pennsylvania.

February 9, 1906

Albert Bettinger, John W. Dunkle, U.S. Atty., and R. W. Gibson Asst. U.S. Atty.

William B. Rogers and John McCleave, for Union Bridge Co.

BUFFINGTON District Judge.

This is a proceeding by the United States against the Union Bridge Company, in the nature of a criminal information, for failure to alter a bridge which is an alleged obstruction to navigation. On the trial thereof no issues of fact were raised. The points of law submitted by the government were affirmed pro forma, those submitted by the bridge company denied pro forma, and a verdict of guilty, under the charge of the court, rendered by the jury. Motions were then made one by the government to impose sentence, and one by the bridge company in arrest of judgment. In its charge the court stated an opinion would be filed later as part thereof, which is now done.

The obstruction here involved consists of a bridge over the Allegheny river just above its junction with the Monongahela at Pittsburgh. The Allegheny river rises in Pennsylvania flows north into New York state, and thence back into Pennsylvania. The latter state, by Act March 21, 1798 (3 Smiths' Laws, p. 320), enacted the Allegheny, from the New York state line to its mouth, a navigable stream, and the state of New York, by Act March 31, 1807, did likewise in its counties of Genesee and Allegheny. The Allegheny is the principal branch of the Ohio; its volume being six times greater than that of the Monongahela. It is included in the general plan for the improvement by the national government of local interstate waterways and the harbor of Pittsburgh. The government has built or has now in process of construction a system of locks and dams on the Allegheny which will slackwater the stream for 27 miles from its mouth. The Davis Island dam, situate five miles below Pittsburgh on the Ohio river, raises the water in the Allegheny and Monongahela at their junction six feet above their normal depths, and backs its water to the first dams of the Allegheny and Monogahela slackwater systems, respectively. These waters form the harbor of Pittsburgh, the importance of which harbor will be appreciated from the fact that the tonnage in water transportation passing from it the past year exceeded that of the Suez Canal for the same period. From its size, interstate relation, and its being a part of this really great harbor, it will be seen that the Allegheny answers the requirement of a navigable stream (The Montello 78 U.S. 411, 20 L.Ed. 191), and is also one over which the national government has assumed jurisdiction. The Union Bridge is a pier-supported, wooden structure. It crosses from Pittsburgh to Allegheny City, and is the first bridge on the Allegheny. It was built in 1874-75 by the Union Bridge Company, a corporation chartered by the state of Pennsylvania March 13, 1873 (P.L. 274), and was opened for travel July, 1875. In pursuance of the agreement of counsel at the argument that all federal acts pertinent to the cause should be considered by the court, we have examined the federal legislation affecting the Allegheny river prior to the building of this bridge. By the act of April 30, 1824 (4 Stat. 22, c. 46), Congress inaugurated the system under which appropriations were annually made providing for surveys and the report thereof to Congress during the period later referred to herein, viz., from 1828 to 1838. That act provided:

'That the President of the United States is hereby authorized to cause the necessary surveys, plans, and estimates, to be made of the routes of such roads and canals as he may deem of national importance, in a commercial or military point of view, or necessary for the transportation of the public mail.'

By virtue of this act, Congress by resolution of December 9, 1828, authorized the examination of 'the Allegheny river from the city of Pittsburgh to the mouth of French creek, at Franklin, with a view to a slackwater navigation. ' Such survey, a distance of 121 miles, was made by the War Department and the report thereof made, which survey and report were on June 8, 1832, reported to Congress and form H.R. Document No. 265 of the first session of the Twenty-Second Congress. This report showed the river could be made navigable to Franklin for a 4 1/2-foot stage, all the year around, by a slackwater system, for 85-ton boats, which the report states was the type in use on the Ohio. By H.R. Document No. 343, second session of the Twenty-Fifth Congress, it appears that another survey was made in 1836-37, in pursuance of a resolution of Congress, and the same was reported to that body on March 23, 1838. This survey was an interstate one. It began in Pennsylvania, extended through New York state, and thence to connect with the prior survey, in all a distance of 274 miles. An examination of the report of the war department engineers shows that this survey was made in pursuance of a plan to connect the great river system of the west and southwest with the New York state canals then building. In that report the present navigation of the Allegheny was illustrated by the draft and capacity of the steamboat New Castle then engaged in that river trade. 'This steamboat,' the report says, 'has carried and towed sixty tons. She has carried eighty passengers and three hundred and fifty bushels of coal and drew two and a half feet of water. * * * The steamboat New Castle has ascended, without great difficulty, from Pittsburg to Olean, and could even, under present circumstances, make regular trips between these places whenever there is sufficient depth of water to pass the chutes of the various dams which have been illegally erected across the river by individuals, to the serious injury of the navigation. ' The navigable depth to be obtained by the improvement of the Ohio was considered the desired standard for the Allegheny, and confidence was expressed that 'there is no longer a doubt of the practicability of deepening the channels of the Ohio river on the bars, so as to afford at least 3 1/2 feet water at its lowest stage from the Mississippi to Louisville. * * * It is a navigation equal to this and upon the same plans, as near as circumstances will permit their application. ' The report stated 'that we wish to secure to the Allegheny river; and I entertain not the slightest doubt of the entire practicability of the undertaking. ' It will thus be seen that in this project, which had in view connecting the canal system of New York state with the entire river systems of the west and southwest, the Allegheny river was an important interstate link, for, as the report stated, 'if the Allegheny river should be improved from Olean to Pittsburgh, a water communication is opened for a distance of more than twelve thousand miles, extending far into the heart of one of the most fertile regions of the globe. ' The report shows that the notes, maps, profiles, and plans of this work were burned, and no steps were taken toward slackwatering the stream until shortly after the Union Bridge was built; but this early work by Congress evidences an assumption by the national government, at least to the extent of survey and examination, of jurisdiction over the Allegheny as a proper subject of interstate navigation improvement.

It will also be noted that the use of the Allegheny was included by the government in its plans for the creation of a deep-water harbor for Pittsburgh. This is fully set forth in the report of Maj. Merrill of December 2, 1874, found in Chief of Engineers' Report of 1875, vol. 2, p. 687. Briefly stated, that report shows a public agitation for many years for a deeper harbor for Pittsburgh; long study and investigation as to the proper type of dams by the war department engineers; the approval of the movable dam system; the determination to place such a dam so as to slackwater the harbor and the necessity of using the Allegheny for such harbor. The movement culminated in the passage of the act of March 3, 1875, by virtue of which the Davis Island experimental dam, then and still the largest movable dam built, was constructed, and forms the harbor of the city. In view of the public interest and agitation over this proposed improvement, the fact that the Allegheny was to be used as part of the harbor, the deterrent effect of the public notice by the engineer in charge, referred to hereafter in Judge Taft's opinion, that this bridge would obstruct navigation, becomes more significant.

By act of Congress of March 3, 1899 (30 Stat. 1153, c. 425, Sec. 18 (U.S. Comp. St. 1901, p. 3545)), it was provided as follows:

'That whenever the Secretary of War shall have good reason to believe that any railroad or other bridge now constructed, or which may hereafter be constructed, over any of the navigable waterways of the United States is an unreasonable obstruction to the free navigation of such waters on account of insufficient height, width of span, or otherwise, or where there is difficulty in passing the draw opening or the draw span of such bridge by rafts, steamboats, or other water craft, it shall be the duty of the said Secretary, first giving the parties reasonable opportunity to be heard, to give notice to the persons or corporations owning or controlling such bridge so as to alter the same as to render navigation through or under it reasonably free, easy, and unobstructed; and in giving such notice he shall specify the changes recommended by the Chief of Engineers that are required to be made, and shall prescribe in each case a reasonable time in which to make them. If at the end of such time, the alteration has not been made, the Secretary of War shall forthwith notify the

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